…that the 11th Circuit ignored:
The real problem raised by Obamacare is not the unprecedented individual mandate, but rather the expansive scope that the Supreme Court has already given to the federal government’s spending power — which is both the root of the Medicaid issue and perhaps the gravest threat to the federal structure of the Constitution. In U.S. v. Butler (1936), the Supreme Court warned that conditional federal grants could become an “instrument for the total subversion of the governmental powers reserved to the individual states.” So it has proved. But in U.S. v. Printz (1997), the Supreme Court ruled that what offends the “dual sovereignty” of the states is an offense to the federal structure of the Constitution, and must be struck down.
By elision, the Eleventh Circuit deftly avoided Judge Vinson’s invitation to extend the logic of Printz to the domain of conditional federal grants. Perhaps it had little choice, given that Dole is both unworkable and (for the moment) a controlling precedent. Unfortunately, we do not have the same “circuit split” on the Medicaid issue that now guarantees the individual mandate’s rapid ascent to the Supreme Court. But, with any luck, the Supremes will grant certiorari on the Medicaid issue, and at long last squarely face how poisonous federal conditional grants are to the whole philosophy of government that shaped our Constitution.
Let’s hope.
This part ties in nicely with our discussion from last week of eliminating the Department of Transportation:
But here’s what’s really interesting: A full trial of the facts would only further reveal that Dole’s coercion rule is totally unworkable, because it is based on a logical fallacy. When the federal government uses its taxing power to take money from the states and then returns it to them only on condition that they agree to whatever policy the current congressional majority may prefer — in an area of traditional state concern — there is coercion, pure and simple, whether it’s one dollar or a billion dollars.
The federal government does this with many things, not just Medicaid. One example is when the federal government dictated the national speed limit be 55 MPH back in the 1970s. Another is the blood-alcohol limit for DUI, yet another concerns seatbelt and motorcycle helmet laws. In all of these cases, the federal government took tax money from the states and then threatened to cut the funding unless the states complied with whatever Congress or the administration was pushing at the moment. And it is coercion, pure and simple.